WikiLeaks Document Release http://wikileaks.org/wiki/CRS-RS21468 February 2, 2009 Congressional Research Service Report RS21468 Child Pornography: Side-by-Side Comparison of S. 151 and H.R. 1161, 108th Congress Henry Cohen, American Law Division Updated March 27, 2003 Abstract. In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child. The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer-generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene. In response to this decision, the Senate passed S. 151, 108th Congress, and the House will consider H.R. 1161, 108th Congress. This report compares the substantive provisions of these bills. Order Code RS21468 Updated March 31, 2003 CRS Report for Congress Received through the CRS Web Child Pornography: Side-by-Side Comparison of the Senate-passed and House-passed Versions of S. 151, 108th Congress Henry Cohen Legislative Attorney American Law Division http://wikileaks.org/wiki/CRS-RS21468 Summary In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional the federal child pornography statute to the extent that it prohibited material that was produced without the use of an actual child.1 The case held, in other words, that pornography produced without the use of a minor, whether drawn or painted, computer- generated, or produced only with adult actors, is protected by the First Amendment, even if it appears to portray a minor, unless it is obscene.2 In response to this decision, the Senate and House passed differing versions of S. 151, 108th Congress.3 This report compares the substantive provisions of these bills.4 1 535 U.S. 234 (2002). 2 "Obscenity," which is not protected by the First Amendment, is defined by the Supreme Court as material that appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973). Pornography that uses an actual child is not protected by the First Amendment, even if it meets none of the three criteria for obscenity. 3 The House-passed bill began as H.R. 1161 and was adopted (except for section 10) as an amendment (Title V) to H.R. 1104, which the House passed as S. 151. 4 For additional information, see CRS Report 95-406, Child Pornography: Constitutional Principles and Federal Statutes; CRS Report RL31744, Child Pornography Produced Without an Actual Child: Constitutionality of 108th Congress Legislation; and CRS Report RS21463, Child Pornography: Comparison of Selected Provisions of the Senate-passed and House-passed Versions of S. 151, 108th Congress, with Brief Comments on their Constitutionality. Congressional Research Service ~ The Library of Congress CRS-2 Provision Senate-passed bill House-passed bill Title of bill "Prosecutorial Remedies and Tools Title V of the "Child Abduction Against the Exploitation of Children Prevention Act" (§ 1) Today Act of 2003" or "PROTECT Act" (§ 1) Findings Findings 1 through 9 and the first two Not in Senate-passed bill: Third (All findings sentences of Finding 10 in each bill sentence of Finding 10, Finding 11, in the Senate- are substantively identical. Findings and Finding 12. (§ 501) passed bill are 11-13 of the Senate-passed bill are in the House- identical to Findings 13-15 of the passed bill, House-passed bill. (§ 501) but not vice versa.) Pandering, Section 3 would prohibit advertising, Section 503 would enact 18 U.S.C. false promoting, presenting, distributing, or § 2252B, which would prohibit advertising soliciting any material in a manner to advertising, promoting, presenting, or http://wikileaks.org/wiki/CRS-RS21468 cause another to believe that it is an describing any material in a manner to obscene visual depiction of a minor, cause another to believe that it is child or is child pornography produced with pornography produced with an actual an actual minor. child. ("Distributing" and "obscene" in the Senate-passed bill are not included.) Providing Section 3 would prohibit distributing, Section 505 would prohibit providing material to offering, sending, or providing a or showing a person under 16 material minors minor (a person under 18) with child that is obscene or child pornography, pornography, whether produced with whether produced with an actual child an actual child or not, to induce the or not, regardless of purpose. minor to participate in an illegal activity. Affirmative Section 3 would allow a defendant to Section 502(d) would allow a defense to avoid conviction by proving that each defendant to avoid conviction by child person used in producing the alleged proving that no person used in pornography child pornography was an adult or producing the alleged child charge none was a minor. Proving that no pornography was a minor. Proving person was a minor would not be an that no person was a minor would not affirmative defense in prosecutions be an affirmative defense in involving images of an actual child prosecutions involving images of an "morphed" to make it appear as if the actual child engaging in sexually child is engaging in sexually explicit explicit conduct or an actual child conduct. "morphed" to make it appear as if he or she is engaging in sexually explicit conduct. CRS-3 Provision Senate-passed bill House-passed bill Affirmative Section 3 provides that a defendant No provision. defense notice may not assert the affirmative defense requirement that no person was a minor unless, absent extraordinary circumstances, he provides the court and the U.S., no later than 10 days before trial, with notice of his intent to assert the defense and the substance of his evidence. Admissibility On motion of the government, except No provision. of evidence for good cause, nonphysical identifying information, other than age, of any minor depicted in child pornography shall not be admissible, and jury shall be instructed to draw no inference from the absence of such http://wikileaks.org/wiki/CRS-RS21468 evidence. Child Section 5 would define "child Section 502(a) would define "child pornography pornography" to require the use of an pornography" to include a computer- with an image "identifiable minor," and would define generated image that is "indistinguish- indistinguish- "identifiable minor" to include an able" from that of an actual minor. 18 able from that image "virtually indistinguishable" U.S.C. § 1466A, which would be of an actual from that of an actual minor. created by section 504, would define minor "indistinguishable" to mean "virtually indistinguishable." Proof of Section 5 would provide that proof of No provision. actual identity the actual identity of a minor shall not of minor be required to establish that he is a minor (under 18). Definition of Section 5 would include "simulated Section 502 would include "simulated "sexually sexual intercourse" in the definition sexual intercourse" in the definition explicit only if "lascivious" and only if "the only if "lascivious" and only if "the conduct" genitals, breast, or pubic area of any genitals, breast, or pubic area of any person is exhibited." person is exhibited." Depictions, Section 6 would enact 18 U.S.C. Section 504 would enact 18 U.S.C. obscene or § 2252B, which would prohibit § 1466B, which would prohibit otherwise, of producing, distributing, receiving, or producing, distributing, receiving, or minors possessing with or without intent to possessing with or without intent to engaging in distribute, any depiction that appears distribute, any depiction that appears sexually to be of a minor engaging in sexually to be of a minor engaging in sexually explicit explicit conduct, if it is obscene or explicit conduct, if it is obscene. conduct lacks serious literary, artistic, political, or scientific value. CRS-4 Provision Senate-passed bill House-passed bill Affirmative Defendant possessed fewer than 3 Defendant possessed fewer than 3 defense under images and promptly destroyed them images and promptly destroyed them 18 U.S.C. or afforded law enforcement agency or afforded law enforcement agency §§ 2252B or access to them (substantively the same access to them (substantively the same 1466B as 18 U.S.C. §§ 2252(c), 2252A(d)). as 18 U.S.C. §§ 2252(c), 2252A(d)). Sentencing The category of offenses described in The category of offenses described in under 18 § 2G2.2 of the Sentencing Guidelines § 2G2.2 of the Sentencing Guidelines U.S.C. shall apply unless the Sentencing shall apply unless the Sentencing §§ 2252B or Commission promulgates higher Commission promulgates higher 1466B sentencing ranges. sentencing ranges. Depictions of No provision. Section 504 would enact 18 U.S.C. pre-pubescent § 1466A, which would prohibit children, producing, distributing, receiving, or actual or possessing with or without intent to otherwise distribute, any depiction that is, or is http://wikileaks.org/wiki/CRS-RS21468 indistinguishable from, that of a pre- pubescent child engaging in sexually explicit conduct. Sentencing Not applicable. The category of offenses described in under 18 § 2G2.2 of the Sentencing Guidelines U.S.C. shall apply unless the Sentencing § 1466A Commission promulgates higher sentencing ranges. Extraterritori- Section 10 would make it a crime to Section 506 would make it a crime to al production employ, use, persuade, induce, entice, employ, use, persuade, induce, entice, of child or coerce any minor to engage in, or or coerce any minor to engage in, or pornography assist another person to engage in, any assist another person to engage in, any for distribu- sexually explicit conduct outside of sexually explicit conduct outside of tion in the the U.S., its territories or possession, the U.S., its territories or possession, United States to produce child pornography to be to produce child pornography to be transported to the U.S., its territories transported to the U.S., its territories or possessions. or possessions. Record- Section 7 would amend 18 U.S.C. Section 512 would require the keeping § 2257, which requires producers of Attorney General to submit a report to requirements sexually explicit material to keep Congress detailing the number of records of performers' names and date times since January 1993 that the of birth. Section 7 would (1) allow Department of Justice has inspected records to be used in obscenity the records of any producer of prosecutions, (2) apply the section to materials regulated pursuant to 18 computer-generated and digital U.S.C. § 2257 and 28 C.F.R. § 75. images, and (3) increase the possible The Attorney General shall indicate prison sentence for violations of the the number of violations prosecuted as section. a result of those inspections. CRS-5 Provision Senate-passed bill House-passed bill Service- Section 8 would amend 18 U.S.C. Section 508(a) would amend 18 provider § 13032, which requires electronic U.S.C. § 13032, which requires reporting communication service providers to electronic communication service report child pornography to the providers to report child pornography National Center for Missing and to the National Center for Missing and Exploited Children. Section 8 would Exploited Children. Section 508(a) require them to report it to state would require them to report it to state officials as well. officials as well. Contents Section 9 would amend 18 U.S.C. Section 508(b) would amend 18 disclosure of § 2702 so that it does not prevent U.S.C. § 2702 so that it does not stored com- electronic communication service prevent electronic communication munications providers to report child pornography service providers to report child to the National Center for Missing and pornography to the National Center Exploited Children. for Missing and Exploited Children. Civil Section 11 would authorize persons No provision. http://wikileaks.org/wiki/CRS-RS21468 remedies aggrieved by violations of 18 U.S.C. § 2252A to sue for injunctive relief, compensatory and punitive damages, and attorneys' and expert witnesses' fees. Enhanced Section 12 would include obscenity Section 507 would include obscenity penalties for convictions among the past crimes convictions among the past crimes recidivists that would cause a violator of child that would cause a violator of child pornography laws to be deemed a pornography laws to be deemed a recidivist. recidivist. Sentencing Section 13 would require the No provision. enhancements Sentencing Commission to review, for interstate and, as appropriate, amend the Federal travel to Sentencing Guidelines to ensure that engage in penalties are adequate in cases that sexual act involve interstate travel with intent to with juvenile violate 18 U.S.C. § 2423. Appointment Section 14(a) would require the No provision. of trial Attorney General to appoint 25 attorneys additional trial attorneys to the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice or to U.S. Attorney's Offices to prosecute child pornography crimes. Report to Section 14(b) would require the See entry on page 4, describing Congressional Attorney General to report to the section 512, on record-keeping Committees Judiciary Committees on enforcement requirements. of federal child pornography laws. CRS-6 Provision Senate-passed bill House-passed bill Sentencing Section 14(c) would require the No provision. Guidelines Sentencing Commission to review, and, as appropriate, amend the Federal Sentencing Guidelines applicable to 18 U.S.C. § 2252A(3)(B) and (6). Interception Section 15 would allow judges to Section 511 would allow judges to of communi- authorize the interception of wire and authorize the interception of wire and cations oral communications in investigating oral communications in investigating additional crimes, including child violations of 18 U.S.C. §§ 1466A and pornography. 1466B, which the House-passed bill would enact. Investigative Section 16 would allow subpoenas Section 510 would allow subpoenas authority issued in an investigation of sexual issued in an investigation of sexual exploitation or abuse of children to exploitation or abuse of children to seek additional types of information. seek additional types of information. http://wikileaks.org/wiki/CRS-RS21468 Severability Section 17 provides that, if any Section 509 provides that, if any provision of S. 151 is held invalid, the provision of Title V of S. 151 is held remainder shall not be affected. invalid, the remainder shall not be affected.